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ELRCPartially AllowedELRC Cause No. 1922 of 2016· [2023] KEELRC 2086 (KLR)

Maina v Standard Group Limited (Cause 1922 of 2016) [2023] KEELRC 2086 (KLR)

Employment and Labour Relations Court
13 July 2023
4,160 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded an editor Kshs 3.5 million after his employer cut his contractual salary, confirming old payslips cannot rewrite your employment contract.

What this practically means

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Executive summary

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The claimant, employed by the respondent on December 20, 2012 as an Alternative Editor for the Sunday Standard at a contractual basic salary of Kshs 550,000 per month, sued for Kshs 3,928,032 alleging unlawful unilateral reductions of his basic salary in May 2013 (to Kshs 350,000) and July 2013 (to Kshs 450,000), which depressed his gratuity and terminal dues upon early retirement in July 2015. The respondent maintained that Kshs 550,000 was a composite figure including a Kshs 200,000 car allowance, as reflected in payslips. A preliminary objection on limitation had been dismissed in a ruling of April 4, 2022 as unsuitable for summary determination. The court framed three issues: limitation, whether the salary was reduced, and entitlement to reliefs. It held that under section 90 of the Employment Act unlawful salary deductions constitute a continuing injury, so the suit was not wholly time-barred, but recovery was limited to deductions within three years of filing suit. On the evidence, the contract expressly provided Kshs 550,000 as basic pay; payslips could not recharacterise it as gross salary, that being tantamount to rewriting the contract contrary to Grain Pro (Kenya) Inc v Andrew Waithaka Kiragu and Ronald Ongeri v Styroplast Ltd. The claimant was awarded Kshs 3,528,032 (the pleaded figure less Kshs 400,000 attributable to the out-of-time May–June 2013 period), plus costs and interest at court rates from the date of judgment until full payment.

Key legal issues

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01

Limitation under section 90 of the Employment Act

Holding

The suit was not wholly time barred; unlawful salary deductions constitute continuing injury, with recovery limited to the three years preceding filing of suit.

Reasoning

Section 90 reduces the limitation period for employment claims to three years but contains a proviso for continuing injury, allowing suit within twelve months of cessation. The court held that repeated wrongful salary deductions are separate acts cumulatively amounting to continuous damage, so the claimant could sue, but recover only deductions effected between September 18, 2013 and September 19, 2016.

p. 6
02

Whether the kshs 550,000/- contractual figure was basic pay or composite gross pay

Holding

The contract expressly provided kshs 550,000/- as basic pay; the respondent could not rely on payslips to recharacterise it as including a car allowance.

Reasoning

The contract's clause 5 described the sum as 'basic pay' without any allowance. The respondent's witness admitted basic pay differs from gross pay. Following Grain Pro (Kenya) Inc v Andrew Waithaka Kiragu, payslips do not constitute the contract and cannot vary express terms. To hold otherwise would rewrite the contract, which courts cannot do.

p. 7
03

Entitlement to reliefs

Holding

The claimant was entitled to terminal dues computed on the contractual basic salary for deductions within the limitation period; the pre-September 2013 arrears claim of Kshs 400,000 was refused.

Reasoning

Having found the salary reductions unlawful and that terminal dues were computed on suppressed basic pay figures, the court awarded the pleaded cumulative figure of Kshs 3,928,032 less the Kshs 400,000 attributable to the out-of-time May–June 2013 period, arriving at Kshs 3,528,032, plus costs and interest.

p. 8

Legal principles established

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  • Where an employer unlawfully deducts an employee's salary, each deduction is a separate incident but cumulatively a continuing injury under section 90 of the Employment Act; recovery is limited to deductions within the three years preceding suit.
  • A payslip is not a contract and cannot be used to vary or explain an express unambiguous term of a contract of employment.
  • Courts may not rewrite contracts for parties; a figure expressly contracted as 'basic pay' cannot be recharacterised as composite gross salary.

Court orders

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  1. 1.Judgment entered in favour of the claimant for Kshs 3,528,032.00, a cumulative figure under the various heads pleaded
  2. 2.Costs of the suit to the claimant
  3. 3.Interest at court rates from the date of judgment till full payment

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsection 17(1)
  • Employment Actsection 10[7]
  • Employment Actsection 31(2)(a)
  • Limitation of Actions Act (cap 22)section 4(1)
  • Evidence Actsection 107
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21)section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (5)

  • Muriungi Kanoru v Stephene Ungu M’Mwirabua
    [2015] eKLR
  • George Otieno Rambo vs. Nation Media Group Ltd
    (2021) eKLR
  • Grain Pro (Kenya) Inc vs Andrew Waithaka Kiragu
    (2019) eKLR
  • Ronald Ongeri -vs- Styroplast Ltd
    (2022) eKLR
  • Globe Motors Inc & others vs TRW Electric Steering Ltd & others
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, section 90 of the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Maina v Standard Group Limited (Cause 1922 of 2016) [2023] KEELRC 2086 (KLR)", Case Analysis (2023). ELRC Cause No. 1922 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2086/eng@2023-07-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.